National Anthem: Now Victim of Judicial Activism! by Jaipal Singh SignUp

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National Anthem: Now Victim of Judicial Activism!
by Dr. Jaipal Singh Bookmark and Share

The Supreme Court of India made an observation in a recent order on 24 October, 2017 that there is no need for people to stand up in cinema halls to prove their patriotism while the National anthem is played before a movie. The apex court simultaneously also asked the Central Government to consider amending the rules that regulate playing of the National Anthem before a movie. While commenting that the society did not need ‘moral policing’, the apex court bench headed by Chief Justice Dipak Misra remarked that in future the government might want people to stop wearing T-shirts and shorts to cinemas saying this would disrespect the National Anthem but the bench will not allow the government to "shoot from its shoulder", and government must take a call either way on the issue. The court gave time to the government to respond until 9 January 2018, which is scheduled as the date of next hearing.

This order is interesting and some people may find it quite amusing too because earlier on 30 November 2016, the Supreme Court bench comprising of two judges including Justice Dipak Misra (now Chief Justice) and Justice Amitava Roy had decided on a public interest litigation (PIL) made by Shyam Narayan Chouskey that all cinema halls across the country must mandatorily play the national anthem before the screening of films and that all present must "stand up in respect" till the anthem ended. The overlying emphasis in the order was that this practice would "instil a feeling within one a sense of committed patriotism and nationalism."

In essence the order contained the following elements:

  1. There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit.

  2. There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

  3. National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

  4. All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

  5. Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

  6. When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

  7. The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

As the Supreme Court wanted compliance of their order within seven days, the Government of India, Ministry of Home affairs vide their order dated 6 December, 2016 had directed chief secretaries of all state governments and administrators of the union territories for compliance and necessary action in letter and spirit of the court order. While passing order, the bench had remarked that it is the duty of every citizen to show respect when the national anthem is played or recited or sung under the Prevention of Insults to National Honour Act of 1951. The Bench observed too much has been indulged in the name of ‘individually perceived notions of freedom’ and now people should feel that they live in a nation and show respect to the national anthem and the national flag. During the court proceedings, the Union Government through its Attorney General expressed complete agreement about the need for specific guidelines to show respect and honour for the National Anthem and the Flag.

Government Order/Guidelines on National Anthem

The Central Government has issued orders from time to time containing guidelines on the National Anthem played or sung on various occasions. The last order suo moto issued by the government dates back to 11 March, 2016 and the chief points of this order are briefly reproduced as under:

The National Anthem (unedited full text)

Jana-gana-mana-adhinayaka jaya he
Tava Subha name jage, tave subha asisa mage,
gahe tava jaya-gatha.
Jana-gana-mangala-dayaka jaya he
Jaya he, Jaya he, Jaya he,
jaya jaya jaya jaya he.

Occasions on which the Anthem shall be played are: Civil and Military investitures; National Salute to the President or to the Governor/Lieutenant Governor within their respective States/Union Territories; During parade; On arrival and departure of the President at State formal/other functions; Immediately before and after the President addresses the Nation over All India Radio; On arrival of the Governor/Lieutenant Governor at State formal functions within his State/Union; When the National Flag is brought on parade; When the Regimental Colours are presented; For hoisting of colours in the Navy. Besides, The Anthem shall be played on any other occasion for which special orders have been issued by the Government of India, and mass singing of the Anthem is done on the unfurling of the National Flag on cultural and other occasions.

The order says that it is not possible to give an exhaustive list of occasions on which singing of the Anthem can be permitted but as long as mass singing is done with due respect as a salutation to the motherland and proper decorum is maintained, there should be no objection in playing it. In addition, in all schools the day’s work may begin with the community singing of the Anthem with a view to popularising the singing and promoting respect for the National Anthem and National Flag among students.

There was no provision for the playing of the National Anthem in movie theatres in the extant orders till the issue of direction by the Supreme Court on 30 November 2016. It was only in compliance of the apex court direction that the Central Government issued an order for compliance of all concerned in the first week of December 2016 incorporating salient points of the court direction. Of late there have been number of cases where the court(s) have intervened and passed order either on a PIL or suo moto on the subjects which ordinarily fall in the jurisdiction of executive or legislature. This appears to be yet another case of judicial activism where by one order the apex court makes it mandatory to play the National Anthem in cinema hall and then by another order the same court holds that it is not necessary for people to stand up to prove their patriotism when the Anthem is played before movie.

As the earlier order of 30 November, 2016 affected public at large, as expected it evoked fierce debate in media with some people even ridiculing it as patriot-isation of culture while many others held that this was indeed a good move. Ironically, when the matter came up again before the apex court, the Senior Advocate KK Venugopal, who held the view on previous occasion that the order could lead to law-and-order problem as it would be difficult for theatre owners to make people stand especially children and elderly viewers or those who are physically challenged, was now Attorney General endorsing the stand taken by the Government. Similarly, Justice Dipak Misra who delivered November 2016 order was now Chief Justice, who along with Justice AM Khanwilkar and Justice DY Chandrachud heard an application for recall of its original order. The court has the power to recall its orders in exceptional cases and this time the court looked at the other side of the issue. Reportedly, Chief Justice Misra even suggested that the interim order could be changed from "shall play" to "may play" the Anthem, but the order as delivered did not record all this and left it to the Central Government to take a final call. It also added that the government doesn't need to be influenced by the earlier order.

History of Anthem Played in Theatres

The practice of playing the National Anthem in the movie theatres started sometime in early 1960s apparently after the Sino-Indian War of 1962 with a view to motivate people with nationalism and patriotic sentiments. As there was a tendency among many people to simply leave cinema hall immediately at the end of the film, there was criticism and a view prevailed that this tantamount to insult of the National anthem. Hence the practice of playing the anthem at the end of film was stopped by the Government. After the apex court passed order on 30 November 2016, the practice of playing the Anthem immediately before the movie has been enforced by the Government in compliance. There is one specific known instance in 2003 when the Maharashtra Assembly passed a resolution mandating the playing of the National anthem before the start of movie in cinema halls.

Origin and Adoption

Jana Gana Mana, the National Anthem of India was originally composed in Bengali by the poet and author Rabindranath Tagore. Available records suggest that it was first sung on 27 December 1911 at the Calcutta (now Kolkata) session of the Indian National Congress. Jana Gana Mana is the first of five stanzas of Tagore's Bengali song Bharot Bhagyo Bidhata; the Hindi version of the song was adopted by the Constituent Assembly of India as the National Anthem on 24 January 1950. The formal recitation of the National Anthem takes approximately fifty-two seconds. A shortened version comprising of the first and last lines is also used at certain occasions which takes about twenty seconds.

The English translation* of the Anthem is as under:


Thou art the ruler of the minds of all people,
Dispenser of India's destiny.
Thy name rouses the hearts of
Punjab, Sindhu, Gujarat and Maratha,
Of the Dravida and Odisha and Bengal;
It echoes in the hills of the Vindhyas and Himalayas,
mingles in the music of Jamuna and Ganges
and is chanted by the waves of the Indian Sea.
They pray for thy blessings and sing Thy praise.
The saving of all people waits in Thy hand,
Thou dispenser of India's destiny.
Victory, Victory, Victory to Thee.

(*Source: Wikipedia)

The beauty of the song is that it almost entirely uses nouns that may also serve as verbs. Besides, most of these nouns are in use of all major Indian languages. Therefore, the original text of the song is clearly understandable and by and large remains unchanged in different Indian languages. It may be relevant to mention here that some people tend to mix up the ‘National Anthem’ and ‘National Song’ treating both as one and the same. It is necessary for them to understand that the National Constituent Assembly had granted the status of National Anthem to Jana Gana Mana and the National Song status to another wonderful patriotic song ‘Vande Mataram’ written by the iconic Bengali writer Bankim Chandra Chatterjee that he included in his famous novel Anandamath.

Controversies Shrouding The National Anthem

The Anthem has invited controversies on many occasions in the past since its adoption and the most prominent crib being the allegation of some people that it was written by Tagore in the praise and honour of the British Crown. Perhaps the chief reason for this stipulation is that the song was first sung during the Kolkata convention of the Indian National Congress when it was still considered loyalist to British and it had indeed welcomed the visiting British Crown George V during the said convention. The event was so reported in the British Indian press around that time.

Many Historians, however, largely agree that the newspaper reports of the British Indian press misrepresented the fact and this doubt was created on account of another song ‘Badshah Humara’ written by Rambhuj Chaudhary and sung on the same occasion in praise of the British emperor. The position is also explained in a letter written by Tagore on 10 November 1937 to Pulin Bihari Bose (Full text available in Tagore’s biography Ravindrajivani, volume II page 339 by Prabhat Kumar Mukherjee). Tagore wrote, “…A certain high official in His Majesty's service, who was also my friend, had requested that I write a song of felicitation towards the Emperor. The request simply amazed me. It caused a great stir in my heart. In response to that great mental turmoil, I pronounced the victory in Jana Gana Mana of that Bhagya Bidhata (God of Destiny) of India who has from age after age held steadfast the reins of India's chariot through rise and fall, through the straight path and the curved. That Lord of Destiny, that Reader of the Collective Mind of India, that Perennial Guide, could never be George V, George VI, or any other George.”

There should not be doubt on the patriotism of Tagore who wrote other songs too with patriotic fervour during the Indian Independence Movement. It is of common knowledge how he renounced his knighthood in protest against the 1919 Jallianwala Bagh Massacre which was bestowed on him by the King George V after he received the Nobel Prize in Literature for ‘Gitanjali’. In fact, compositions of Tagore such as ‘Chitto Jetha Bhayshunyo’ (Where the Mind is Without Fear, Gitanjali Poem 35) and ‘Ekla Chalo Re’ (Walk Alone") had gained mass appeal and favour of even the likes of Gandhi and Subhash Chandra Bose and are fondly remembered till date. However, in a country like India which is full of complexities and paradoxes, such controversies are not new feature and are inevitable. Even in recent years, Kalyan Singh, Governor of Rajasthan and the former Supreme Court judge Markandey Katju raised this controversy again.

Yet another controversy that only those provinces that were under British rule, i.e. Punjab, Sindh, Gujarat, Maratha, Dravid (South India), Odisha and Bengal were mentioned, and none of the princely states or the states in Northeast India, find a place in the text of the Anthem. While raising such controversies people forget that the iconic song was written more than a hundred years back in a different political, cultural and even geographical conditions and a lot of changes have taken place ever since. It is the sentiments and spirit of patriotism which is relevant and important.

Many Muslim clerics and politicians oppose and forbid singing of the National Anthem in Madarasas and elsewhere objecting to the word ‘Sindhu’ in the Anthem. In 2005 too, objections were raised by people to delete the word "Sindhu" and substitute it with the word Kashmir. The counter argument given in defense was that the word "Sindhu" refers to the Indus River and to Sindhi culture which are still an integral part of India's cultural fabric. This argument indeed has some weight because in Pakistan the referred province is spelled as ‘Sindh’ or ‘Sind’ while the word ‘Sindhu’ finds a mention even in Indian epic Mahabharata and some Puranas as a kingdom in ancient era on the banks of the Sindhu River. The matter was even raised in the apex court in the past and the Supreme Court of India declined to make any change in the wordings of the National Anthem.

Disrespecting National Anthem

Several instances have been reported in the past when people were prosecuted or penalised for showing disrespect to the National Anthem. The most publicised and talked about case of punishment for not singing the national Anthem is reported from Kerala in 1985. The case received nationwide publicity as Bijoe Emmanuel v. State of Kerala in the Supreme Court. When the headmistress of a school ordered the recitation of the Anthem in the class on 8 July 1985 making it compulsory for all children to stand up and sing it, 15-year-old Bijoe and his two younger sisters did not comply with the order because they believed that doing so would constitute a form of idolatry and an act of unfaithfulness to their God Jehovah. There was a debate and difference of opinion at various levels about the action to be taken but it was eventually held by the state authorities that the students’ behaviour was unpatriotic and they be expelled from the school unless they agree to recite the Anthem. The father of children filed a writ petition in the Kerala High Court but the court decided the case against them. The relief finally came from the Supreme Court which overruled High Court and held that expelling the children based on their “conscientiously held religious faith” violated the Constitution of India. In that case, the Supreme Court observed that there was no provision of law which obliged anyone to sing the National Anthem nor was it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung did not join the singing.

In the past, in several isolated incidents police action i.e. arrest and prosecution was taken against the unruly behaviour of people after reportedly showing disrespect to the National Anthem played at the end of movie in theatres in late 1960s and the majority of such people were from the Muslim community. In December 1998, a famous film comedian Johnny Lever too was convicted and sentenced to seven days imprisonment for insulting the National Anthem and Indian Constitution during a private performance for a relative of the alleged Don Dawood Abraham in Dubai. In Febraury 2017, two Kashmiris were prosecuted for not showing respect to the Anthem by standing up in a Cinema invoking the provisions of the Prevention of Insults to National Honour Act, 1971.

Recently in 2017, the Uttar Pradesh Government had issued an order on the eve of the Independence Day for all the government aided madrasas to recite the National Anthem and make videography of the Independence Day celebrations. Many madrasas across Uttar Pradesh defied the government order, particularly in the Western Uttar Pradesh and instead preferred to sing ‘Saare Jahan Se Achha’, a patriotic song written by the poet Mohammad Iqbal besides not record the proceedings. In the state capital Lucknow too, the world renowned Islamic seminary Darul Uloom Nadwatul Ulema celebrated the Independence Day by hoisting of the national flag at the top of the building with the recitation of the poet Iqbal’s song followed by special prayers for the country. When specifically asked about the National Anthem, the cleric Maulana Nadwi reportedly said that the National Anthem has the word ‘Sindhu’ which is in Pakistan and if this word is removed, they would sing it, an excuse which hardly stands a rational scrutiny.

Existing laws in the country do not have provision to penalise or force any person to stand up or sing the National Anthem. The Prevention of Insults to National Honour Act, 1971 only provides - “Whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.” The Home Ministry order of 11 March 2016 provides “Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a newsreel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.” The same order also leaves it to the good sense of the people not to indulge in indiscriminate singing or playing of the Anthem.

Playing National Anthem in Cinema Halls

At the outset, it may be relevant to mention that the National Anthem is a subject of patriotism and reverence while cinema is primarily a medium of recreation for the people. As per common belief, the practice of playing Anthem in movie theatres in India was started post Sino-Indian 1962 War. This was the time when India was facing a crisis on its entire north-eastern border in confrontation with the mighty neighbour enemy. The sentiments of the Indian people were high with national fervour and many people were eager to make any sacrifice for the nation. In such background, the playing of the Anthem at the end of movie was more conducive and received well barring few exceptions. As the time passed, moviegoers, many of them even unaware of code of conduct, preferred to leave the hall immediately after the movie knowingly or unknowingly disrespecting the Anthem. Probably, this was the reason why the practice of playing the Anthem gradually faded and eventually stopped by 2003.

Current spell of the revival of the practice under the Supreme Court order has invited a mixed response. While the Government and a large section of people feel that this will evoke and strengthen the sense of patriotism among masses, some political activists, secularists and liberals feel that the move will only embolden Hindu supremacists voicing a more divisive and narrow definition of patriotism. Some people even feel that the spirit of the order is going against the very reason why they go to movie theatres. They say they want to relax and enjoy spare time with family and friends, hence to make them attentively stand for the National Anthem immediately before the movie neither makes any sense nor purpose. They feel they don’t have to prove their patriotism anywhere they go.

Since the Supreme Court passed order in November 2016, there have been several instances when movie goers either refused to or could not stand up while the National Anthem was played. Consequently, there have been some instances of scuffle and violence too when zealot audience forced such people to comply. In one instance, three engineering students from Kashmir were reportedly booked by police in the last August on the charges of disrespecting the National Anthem in a movie theatre in Hyderabad. In another case, a wheelchair-bound disability rights-activist was also reportedly heckled and abused at a theatre in Guwahati when he could not stand for the National Anthem.

The Government had issued separate advisory instructions in December 2016 for the differently abled persons to show respect to the National Anthem. It stated that "wheelchair users must position themselves to maximum attentiveness, those on crutches should become non-mobile, deaf persons shall be attentive and blind persons must stand"; escorts of disabled persons must "sensitise the audience" about their ward. This too has received criticism from various quarters citing constraints of disabled persons and that these instructions would prompt people driven by false national pride to take law into their hands.

Way Forward

The current spate of criticism and controversies are fall out of the Supreme Court order of November 2016 making it mandatory for the cinema halls to play the National Anthem before the movie for the given reasons. In a rare case of revisiting own order, the apex court has now in October 2017 has passed another order saying there is no need for people to stand up in cinema halls to prove their patriotism while the National anthem is played. At the same time, the court has now placed ball in the Centre’s court directing the government to take a final call on the subject. Both the orders have generated reaction and controversy among people and social media, some people have gone even to the extent of saying that the judges expect everyone to stand up for them but they consider that similar respect for the National Anthem is not necessary.

The author has no intention to doubt or question the wisdom of court in delivering two controversial and paradoxical orders but it indeed suggests a point that no one is infallible and even apex court could make miscalculations. While it makes sense to provide relief in certain contingencies but it indeed disappoints to learn that people are no more required to stand up in token of showing their reverence to the National Anthem. It is interesting that after two consecutive orders on the subject, the ball has now rightly been thrown in the court of the Government to take a final call on the subject. The subject indeed appears to be rightfully belonging to the domain of the Executive.

The truth is that the current orders of the Central Government did not provide for the National Anthem to be played in the cinema halls of the country until last year the Supreme Court made it mandatory. It was a sound decision of the Government to discontinue the playing the Anthem in cinema halls in the past. The nationalism and patriotism are not something that should be forced on people but at the same time a true nationalist or patriotic person would not see any trouble in showing respect to national symbols. The fact is that most of the people go to movies for fun and recreation and any attempt to force a particular discipline on them during this period is bound to generate reaction and controversies from however minority section (people). Now that the apex court has put the onus on the Centre, the Government should consider discontinuing the practice of playing the Anthem in the theatres as hitherto fore.

Those opposing or showing indifference to National symbols like National Anthem, National Song and National Flag must seriously do some introspection. They will find, it's like careing for own family and dear ones that arises from the inherent sentiments and love as actual drivers. The nation and national symbols may be abstract entities but they too deserve the same sentiments and love of the citizens. 'Saare Jehan Se Achha' is indeed another good patriotic song but it, or for that matter any other song, cannot be an alternative to the National Anthem. India has a variety of festivals, customs and rituals suffice to maintain distinct social and/or ethnic identity of keen people. Nationalism is a common uniting factor and it cannot have different definition or norms for different set of people. Getting rid of narrow considerations of cast, creed, religion and region, if a person recites the National Anthem he (or she) will feel the intimate bonding that its text provides and the wonderful music that its tune contains. It is undoubtedly one of the best patriotic songs ever written in the world history and adopted by a Nation ...that gives an instant goosebumps to a truly patriotic national.

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